This August 31, 2012 1DCA opinion reversed Judge Winn's JCC decision.
In this case, the timeline is important. In short, the timeline was:
A PFB for PTD benefits was filed on January 25, 2011.
The carrier received the PFB on January 28, 2011.
On February 16, 2011, the carrier accepted the claimant as PTD (18 days after receipt of the PFB). The very next day the carrier issued a $2,000 advance that had previously been requested by the claimant.
Finally on March 10, the carrier issued a check paying the claimant PTD benefits minus the $2,000 cash advance.(the first installment of PTD benefits was made 41 days after the PFB was received by the carrier.)
Claimant's counsel filed for attorney fees asserting as grounds that the carrier initially denied the claim but ultimately accepted the claim. The JCC denied fees concluding that the advance paid was a discharge of liability from the date thereof until such advance is recouped by offset against subsequent benefits. The JCC also concluded that the advance was paid out within 30 days of the carrier's receipt of the PFB.
Because the issue on appeal was based solely on statutory interpretation, the 1DCA reviewed the case De Novo. The 1DCA opined that F.S. 440.34(3)(b) indicated that a carrier is deemed to have denied the PFB if it is not responded to within 14 days of receipt. The 1DCA went on to opine F.S. 440.34 also indicates that attorney fees do not attach until 30 days after the carrier receives the petition.
In this case the carrier failed to respond within the initial 14 day period and the PTD payments did not commence until 41 days after the PFB was received.
As for the payment of the advance, the 1DCA concluded that the "advance payment occurs without regard to the carrier's liability to pay a claimant compensation and/or benefits under chapter 440". The y went on to state "the statute does not require proof that the injured worker will actually receive any benefits in the future....limit advances to cases in which compensability is established." The 1DCA continued indicating that an advance is not a payment of compensation due to a claimant.
timeliness is determined by the "date the checks are put in the mail." In this case more than 30 days had elapsed before the checks were place in the mail, the 1DCA held that the claimant was entitled to recover a reasonable attorney's fee.
good post.....I appreciate yor way of writing that make the blog attractive and make reader to hold longer to your blog.
ReplyDeleteworkers comp lawyer manchester nh